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HQ 951093


May 6, 1992

CLA-2 CO:R:C:M 951093

CATEGORY: CLASSIFICATION

TARIFF NO.: 6402.91.60-90; 6402.99.60-90

Mr. A. Francisco Jr.
A. Francisco Jr.
Sales & Marketing
6883 Brian Michael Court
Springfield, Va. 22153

RE: Footwear, children's, athletic-style; Bands, foxing-like

Dear Mr. Francisco:

In a letter dated January 27, 1992, you inquired as to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain children's athletic-style shoes produced in Brazil. You also asked whether these shoes would be entitled to free entry under the Generalized System of Preferences (GSP). Samples were submitted for examination.

FACTS:

The samples submitted are two models of children's athletic- style shoes with outer soles and uppers of rubber or plastics. Model 250 has printed vinyl inserts on the back and sides of the low-top design uppers, eyelet lace closure, and a textile collar or "mustache." Model 260 has a high-top design upper with eyelet lace closure, textile side panels, and a narrow textile top-line trim.

ISSUE:

How are these shoes classified?

LAW AND ANALYSIS:

Subheading 6402.91.40, HTSUS, provides in pertinent part for other footwear with outer soles and uppers of rubber or plastics, other footwear, covering the ankle, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics except (1) footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper . . . . The applicable rate of duty for this provision is 6% ad valorem.

Subheading 6402.99.15, HTSUS, provides in pertinent part for other footwear with outer soles and uppers of rubber or plastics, having uppers of which over 90 percent of the external surface area (including any accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is rubber or plastics (except footwear having a foxing or a foxing-like band applied or molded at the sole and overlapping the upper . . . . The applicable rate of duty for this provision is 6% ad valorem.

After careful consideration of numerous comments submitted by footwear importers and the domestic shoe industry, by a document published as T.D. 83-116 in the Federal Register of May 23, 1983 [48 FR 22904, 17 Cust. Bull. 229 (1983)], the Customs Service set forth:

(1) Customs position regarding the proper interpretation of provisions in the Tariff Schedules of the United States (TSUS) pertaining to imported footwear having foxing or a foxing-like band applied or molded at the sole and overlapping the upper, and (2) guidelines relating to the characteristics of foxing and foxing-like band.

Even though the TSUS was superseded by the Harmonized Tariff Schedules of the United States (HTSUS), effective January 1, 1989, the guidelines of T.D. 83-116 are still followed by Customs with regard to the classification of footwear.

In T.D. 83-116 the characteristics of a foxing or foxing- like band was set forth. A foxing may be described as band,i.e., a strip serving to join, hold together or integrate the sole and the upper of footwear. It may be a thin flat encircling strip, strap, or flat belted material serving chiefly to bind or contain the sole and the upper. It may be attached by cementing, stitching, or vulcanizing. A foxing-like band has the same, or nearly the same appearance, qualities, or characteristics as the foxing appearing on the traditional sneaker or tennis shoe. Customs has taken the position that foxing or a foxing-like band must encircle or substantially encircle the perimeter of the entire shoe in order to be considered as such.

In Headquarters Ruling Letter (HRL) 088510 dated April 29, 1991, Customs took the position that children's shoes having an overlap of 3/16 inch or more around 40 percent of their perimeters may possess foxing-like bands. An examination of the sample footwear reveals that the soles of both models overlap the uppers by over 3/16 inch over 80% of the perimeter of the shoes. Therefore, the sample shoes possess foxing-like bands.

It should also be noted that the external surface area of the upper of model 260 is not over 90% rubber or plastics due to the textile panels and trim.

Model 260 is precluded from classification under subheading 6402.91.40, HTSUS, because it possesses a foxing-like band and the external surface area of its upper is not over 90% rubber or plastics. Consequently, it is classifiable under subheadings 6402.91.60-90, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, covering the ankle, other, other, and dutiable at a rate depending on value per pair in accord with the attached copy of those subheadings. The General column 1 rates of duty are applicable to products of Brazil.

Model 250 is precluded from classification under subheading 6402.99.15, HTSUS, because it possesses a foxing-like band. Consequently, it is classifiable under subheadings 6402.99.60-90, HTSUS, as other footwear with outer soles and uppers of rubber or plastics, other, other, and dutiable at a rate depending on value per pair in accord with the attached copy of those subheadings.

There is no GSP eligibility for importations of models 250 and 260 classified under the above-stated provisions of the HTSUS.

HOLDING:

Models 250 and 260 possess foxing-like bands.

Model 260 is classifiable under subheadings 6402.91.60-90, HTSUS.

Model 250 is classifiable under subheadings 6402.99.60-90, HTSUSA.

Sincerely,

John Durant, Director
Commercial Rulings Division


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